It’s almost set up like a joke: how do we fix the Patriot Act? With the USA FREEDOM Act.

On Tuesday, the original Wisconsin Republican author of the Patriot Act, Jim Sensenbrenner (R-WI), introduced a major change to the October 2011 law. It would ban the bulk collection of metadata, which the government argues is covered by Section 215 of that law (this section allows for the collection of "business records").

"Our bill also ensures that this program will not simply be restarted under other legal authorities, and [it] includes new oversight, auditing, and public reporting requirements," Sensenbrenner wrote in an op-ed in Politico on Tuesday. "No longer will the government be able to employ a carte-blanche approach to records collection or enact secret laws by covertly reinterpreting congressional intent. And to further promote privacy interests, our legislation establishes a special advocate to provide a counterweight to the surveillance interests in the FISA Court’s closed-door proceedings."

In addition to its political support, the proposal has broad backing from both industry and civil liberties groups.

"This bill ensures substantial, meaningful reform,” Sherwin Siy, vice president of Legal Affairs for Public Knowledge, said in a statement. “It's supported by a longstanding champion of civil liberties against government surveillance in Chairman Leahy and by one of the principal authors of the Patriot Act in Chairman Sensenbrenner. The fact that they both agree that the NSA is wielding spying powers never intended by the law is a clear sign that these reforms are essential to reining in these warrantless searches and seizures."

“Due to the stifling secrecy that has shrouded these programs for too long, the public and even some Congressional leaders currently lack sufficient information to precisely define the contours and boundaries that are necessary in this area,” said Ed Black, CEO and president of the Computer and Communications Industry Association, in a statement.

More review and more transparency

First and foremost is the end to bulk metadata collection. Further, the FREEDOM Act would create an “Office of the Special Advocate,” a person who would “vigorously advocate” against the government in hearings at the Foreign Intelligence Surveillance Court. (At present, the government argues before the FISC unopposed.) This idea of a civil ombudsman has also been floated by other lawmakers in recent weeks.

The advocate would be selected from one of five names submitted by the Privacy and Civil Liberties Oversight Board (PCLOB), one of which would then be selected by the chief justice of the United States. The advocate would serve for a term of three years and could be re-appointed indefinitely. It would also give the PCLOB subpoena power for the first time.

Additionally, the bill would require that the attorney general of the United States publicly disclose “all decisions issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review after July 10, 2003 that include a significant construction or interpretation of law.”

Another big addition would be an increase in public transparency to give private companies the ability to publicly report the aggregate number of FISA orders and National Security Letters they have received, how many they have complied with, and how many users this concerns. (This provision is something that companies have asked the FISC to grant them.) But this new bill actually goes further, and it would “require the government to make annual or semiannual public reports estimating the total number of individuals and US persons that were subject to FISA orders authorizing electronic surveillance, pen/trap devices, and access to business records.”

Metadata on the loose

Even with all the positive feelings, the bill still has room for improvement according to some legal experts. For instance, Clark Asay, a law professor at Penn State University, told Ars that the bill does not address a protection gap between data and metadata as far as the law is concerned.

"In today’s world, though, that type of information can say a great deal about each of us—that’s precisely why the government wants it," Asay wrote by e-mail. "So though this bill seems to be on the right track in terms of filling a gap, the gap will likely remain less than ideally filled if history is any indication. For instance, with few exceptions, these statutory fixes have typically provided weak remedies for statutory violations when compared to the types of remedies available under the Fourth Amendment. So in terms of things to be included, you’d definitely hope for meaningful remedies for violations of what the statute requires."

I hope this doesn't mean the NSA will simply subcontract their surveillance out more to the UK's GCHQ. I've not really seen any of the same motions from politicians in UK trying to limit/change the whole bulk surveillance programs. Maybe once the EU are grilling the US, they'll turn the heat on the UK...

This bill also does nothing to limit other surveillance programs e.g. the collaboration between AT&T and the DEA, which reveals more information to the government with (if it's possible) less judicial oversight.

This is certainly a good step in the right direction, but I suspect as constructed it will just result in outsourcing.

Hahahaha...well, only after all major EU member states decided to launch legal investigations and potentially jeopardizing the up coming talks on the ever biggest transaltantic trade treaty..... Apparently, complaints from millions of Americans didn't work at all.....

This bill also does nothing to limit other surveillance programs e.g. the collaboration between AT&T and the DEA, which reveals more information to the government with (if it's possible) less judicial oversight.

This is certainly a good step in the right direction, but I suspect as constructed it will just result in outsourcing.

Except that program utilizes something that any company can do which is obtain data from AT&T. Go to any telecom startup conference and you can see start-ups that purchase the same data from AT&T/Verizon.

Sensenbrenner is such a hypocritical opportunist politican, I guess most of them are, but this is sorta galling.

Reigning in the NSA is good, but here's the man that pushed through the PATRIOT Act like anyone who thought it might lead to abuses was dismissed as terrorist coddlers. Now he acts all surprised when those predictions came to pass...

Anyway, some of its good. A constitutional advocate at FISA is only as good as the person appointed. By the chief justice of the SC? Oh, I'm sure Roberts will pick someone with a strong desire to defend civil liberties from a group that is already selected by the President.

So Snowden's gonna get his statue and a welcome home, right? I mean, if the government really does pass a bill like this, it means they mostly agree with his ideals.

It really doesn't matter if he was right or wrong, what he did was undeniably illegal. There's no way he gets off free short of a pardon, and that's not likely to happen for a very long time, if ever. As much as it was necessary in this case, you can't encourage people to go public with classified information every time they disagree with something, the system would break down, there has to be a cost.

Once those same laws apply to the government, I will buy your argument.

Sensenbrenner is such a hypocritical opportunist politican, I guess most of them are, but this is sorta galling.

Reigning in the NSA is good, but here's the man that pushed through the PATRIOT Act like anyone who thought it might lead to abuses was dismissed as terrorist coddlers. Now he acts all surprised when those predictions came to pass...

Anyway, some of its good. A constitutional advocate at FISA is only as good as the person appointed. By the chief justice of the SC? Oh, I'm sure Roberts will pick someone with a strong desire to defend civil liberties from a group that is already selected by the President.

I don't think he's as bad as Feinstein. She just recently did an op/ed piece for the WSJ where she was arguing that the NSA was perfectly legit in what they were doing (spying on US citizens), and she was working on a bill to expand that. Then the sh*t hit the fan with Merkel being spied upon, and she flatly denounced it, calling for investigations and such.

Funny how it's perfectly fine for the NSA to spy on us in spite of their charter prohibiting it, while spying on foreigners (perfectly WITHIN their charter) is a big no-no. Who is she supposed to be representing again?

"Dozens"? I hope it quickly becomes "hundreds" so we can finally put this idiocy behind us.

These are sponsors - a bill typically gets far more votes than sponsors. If 16% of the House is willing to put their name all over the bill, to be seen as one of its champions, then that's usually a pretty healthy sign for the bill - especially so if it gets bi-partisan support in this Congress, which is exceedingly rare.

The perfect is the enemy of the good. Take positive developments as you can and build on them.

But would you want to continue to build on a flawed foundation?

If the Patriot Act has enough flaws (and I reckon it does, many of them fundamental), then I'd argue it's better to tear it down completely and replace it, rather than trying to paper over the flaws with further new bills.

Patriot may have some worth in there somewhere. If so, then carry that forward to any new legislation while leaving the crap behind. Don't continue to stack other laws on top of it, because what you'll end up is a confused, unworkable mess that accomplishes nothing.

That said, that's what the current government (in its entirety) does best these days...

Re-appointed indefinitely? This totally doesn't smell like the ground work for corruption

Beyond that, if the advocate doesn't report to the public (not the President, and not congress) then what's the point? We'll never know if they are doing their job or not. This just sounds like a cushy political appointment that doesn't actually have to do anything. A public advocacy group like the ACLU should be tasked to appoint the advocate.

"First and foremost is the end to bulk metadata collection""bill does not address a protection gap between data and metadata as far as the law is concerned."

Is not that a little bit contradictory?

"“Office of the Special Advocate,” a person who would “vigorously advocate” ..."You are appointing someone to be biased just because? that makes no sense.

"Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review after July 10, 2003 that include a significant construction or interpretation of law.”"

That makes sense. But, why are they proposing that? So far their interpretations of the law were just based in old and public ones . What "major interpretation" of the law they did?

"Metadata on the loose""bill does not address a protection gap between data and metadata as far as the law is concerned."

By logic and design , metadata can not be protected as a private matter if you rely in a third party service that needs to know who is the sender and who is the recipient to deliver the message! . Why people keep insisting on this?

I see a lack of intelligence and logic with this bill and a lot of reactionary populism driven by the sensationalist media. But that's just me and my irrelevant opinions in this matter.

The perfect is the enemy of the good. Take positive developments as you can and build on them.

But would you want to continue to build on a flawed foundation?

If the Patriot Act has enough flaws (and I reckon it does, many of them fundamental), then I'd argue it's better to tear it down completely and replace it, rather than trying to paper over the flaws with further new bills.

Patriot may have some worth in there somewhere. If so, then carry that forward to any new legislation while leaving the crap behind. Don't continue to stack other laws on top of it, because what you'll end up is a confused, unworkable mess that accomplishes nothing.

That said, that's what the current government (in its entirety) does best these days...

You misunderstand my point. Perfect would be full repeal of the Patriot Act. But, if that is nor forthcoming anytime soon, why not support the correction of some of its abuses, and then once that is done, continue to push for more positive change?

"The prefect is the enemy of the good" means that you should not refuse something good just because it does not get you everything you want.

This bill also does nothing to limit other surveillance programs e.g. the collaboration between AT&T and the DEA, which reveals more information to the government with (if it's possible) less judicial oversight.

Don't forget the significant payments that the government sends to AT&T and Verizon for their helpful cooperation.

This point has come up several times. I agree with it; nothing good has come from that hasty, fearful legislation, so why keep it in place? Do we have insufficient laws? It seems every decision has to be filtered through myriad overlapping and contradictory laws.